I was reviewing a software contract this week and, in the space of the first four clauses, came across three statements prefaced with the phrase "for the avoidance of doubt" (including two in the very first clause). These are classic go-to words used by fidgety lawyers (and non-lawyers groping around for something that sounds "legal"). And I have always disliked them.
It would be nice to think that lawyers sounding legal for the sake of it was a thing of the past (perhaps now indicative of lawyers who are insecure about the value of their services - "you've got to come to us because only we understand lawyerspeak"). But not only is "for the avoidance doubt" a rather arcane and archaic expression - it also raises more questions than it answers. Why raise the issue of doubt? Could there be some doubt? It's rather like someone who begins a diatribe with the give-away words "with all due respect". Labelling something respectful (or lacking doubt) doesn't make it so - and almost invariably betrays the opposite.
The notes from the old Norton Rose M5 Group on "drafting legal documents", which apparently come substantially from a chap called Jim Leaver, say it better than I could:
"The expression "for the avoidance of doubt" should itself be avoided. It is remarkable how often in practice the expression is used to preface a provision which, far from avoiding doubt, actually creates it. There are good reasons why the expression should not be used. On general principles the whole agreement should be drafted in such a way as to remove ambiguity and uncertainty. One of its main (if unproclaimed) purposes is to avoid doubt. The draftsman should ask himself why he feels it necessary to state that purpose expressly in relation to one particular provision."
It's the sort of phrase that is used when the writer isn't actually sure about the meaning of the clause or its effect on the rest of the contract. It almost always signals either poor drafting or areas where the parties aren't quite sure what they've agreed. I'd put it (in Room 101) with that staple of dull journalism "in a very real sense".
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